Findings Of Fact Petitioner was employed by Respondent as a clerical worker, a permanent career service position, at all times material hereto. Prior to October 3, 1988, Petitioner experienced back problems which prevented her attendance at work. Dr. Brian M. Mitteldorf, a chiropractic physician, treated Petitioner beginning September 25, 1988, and continuing through all times material hereto. On October 3, 1988, Theresa (Terry) Bartelmo, Petitioner's supervisor, advised Petitioner in writing that Petitioner would be out of sick leave and annual leave the following day. Mrs. Bartelmo enclosed two copies of the form used to request a leave of absence and advised Petitioner that it was necessary to fill in all blanks and to return the form to her by no later than October 10, 1988. Respondent does not authorize any type of leave for unspecified or unlimited duration. Ms. Bartelmo further advised Petitioner that "... If I do not hear from you by that date, (October 10,1988) then I will assume you wish to terminate your employment with the Department and will process the necessary documentation." On October 3, 1988, Petitioner's husband, Edmund DeSilva, met with Ms. Bartelmo. During the meeting, Ms. Bartelmo gave to Mr. DeSilva the letter she had written to Mrs. DeSilva, together with the forms for the leave of absence. The form for leave of absence was signed by Petitioner on October 3, 1988. Mr. DeSilva hand delivered the form to Ms. Bartelmo prior to the deadline of October 10 set by Ms. Bartelmo. This form was forwarded by Ms. Bartelmo to Martha (Marty) Anderson, Respondent's district personnel manager. Ms. Bartelmo recommended that the leave of absence be granted. Ms. Anderson approved the leave of absence on October 13, 1988. The leave of absence form submitted by Petitioner and approved by Respondent contained a tentative return-to-work date of November 23, 1988. On October 3, 1988, the date Petitioner signed the leave of absence form, it was uncertain when Petitioner would be able to return to work because of her medical condition. On or about October 18, 1988, Ms. Bartelmo telephoned Petitioner to check on her progress. After Petitioner told Ms. Bartelmo that she did not feel well enough to talk, Ms. Bartelmo asked Petitioner to call her when Petitioner felt better. Ms. Bartelmo did not talk with Petitioner again until after Petitioner's employment was terminated. Dr. Mitteldorf called Ms. Bartelmo on November 22, 1988, at approximately 3:30 p.m. Dr. Mitteldorf told Ms. Bartelmo during that telephone conversation that Petitioner was too ill to return to work. Ms. Bartelmo asked Dr. Mitteldorf for a letter stating his opinion as to when Petitioner could return to work. Dr. Mitteldorf's letter was dated December 13, 1988. During their telephone conversation on November 22, 1988, Ms. Bartelmo did not tell or indicate to Dr. Mitteldorf that their conversation was tantamount to an extension of Petitioner's leave of absence. Ms. Bartelmo did not tell Dr. Mitteldorf that she was mailing to him the forms Petitioner needed to submit to request an extension of her leave of absence. Ms. Bartelmo can recommend approval of a request for leave of absence, but she does not have the authority to grant the approval. Ms. Bartelmo did not tell Petitioner or anyone acting on Petitioner's behalf, that Petitioner had any form of authorized leave after November 22, 1988. Other than having Dr. Mitteldorf call Ms. Bartelmo, Petitioner made no effort to have her leave of absence extended. Petitioner's authorized leave of absence ended on November 22, 1988. Petitioner was absent without authorized leave of absence beginning November 23, 1988, and continuing for more than 3 consecutive work days. By certified mailing on December 2, 1988, Petitioner was advised that her career service position was terminated as of December 1, 1988. Petitioner had been given a copy of Respondent's Employee Handbook on December 16, 1986, which provides in part: After an unauthorized absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policies. Petitioner's request for a formal hearing was timely filed.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service due to her unauthorized absence from employment for three consecutive workdays beginning November 23, 1988. DONE and ENTERED this 17th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 17, 18 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 9, 10, 15 and 16 of Petitioner's proposed findings of fact are unsupported by the evidence. COPIES FURNISHED: Larry D. Scott, Esquire Senior Attorney Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Colomba DeSilva 2019 Southwest 29th Avenue Fort Lauderdale, Florida 33312 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: The Petitioner, Anna Torres, (hereinafter "Torres") worked for the Department of Transportation as a toll collector at the Golden Glades toll plaza and was a career service employee at all times pertinent to this case. At the time of the events giving rise to this case, Torres had been employed by the Department for about eight years. Torres was authorized to be on approved leave from October 24, 1989, through November 8, 1989. Torres used that period of leave to drive from South Florida to California to visit her parents. Torres was accompanied on the trip by her roommate. Torres was expected to return to work on November 9, 1990. Torres' father had been sick for several years and during her visit his condition took a sudden turn for the worse, as a result of which it was necessary for her father to be hospitalized. Torres was very concerned about her father's medical condition and felt a need to remain in California until it could be determined whether her father was going to recover from his worsened condition. To facilitate a longer stay in California, Torres' mother offered to pay Torres' airfare from California to Florida in the event Torres could not obtain additional leave, and the roommate offered to drive the car back. On November 7, 1989, Torres placed a telephone call from her parents' home in California to the Golden Glades toll plaza. She spoke with Mildred Burham, who was, and is, the assistant manager at the Golden Glades toll plaza and the supervisor of one of the shifts. Mildred Burham was not the supervisor of Torres' shift. The essence of what Torres told Mildred Burham is that, because of a family emergency, Torres needed to stay in California for another two weeks and wanted a two week extension of her vacation. Torres also asked Mildred Burham to convey the message to Vera Hulse. 1/ Vera Hulse was, and is, the manager of the Golden Glades toll plaza. At that time, Torres did not have sufficient annual or sick leave to cover an additional absence of two weeks. During the November 7, 1989, telephone conversation, Mildred Burham told Torres that she (Burham) would "check into" the request for additional leave and would convey Torres' message to Vera Hulse. Ms. Burham did not tell Torres that the two week extension of her vacation was approved. 2/ During the November 7, 1989, telephone call, Torres did not give Ms. Burham the telephone number at her parents' house in California. Instead, she told Ms. Burham that if they needed to get in touch with her, they could call Torres' son at her home in Florida and he could give them the California telephone number. When Ms. Burham told Vera Hulse about the telephone call from Torres, something apparently got lost in the translation. The message communicated to Ms. Hulse was to the general effect that Torres had called and said that because of a family problem Torres would not be back to Florida for another two weeks. Ms. Hulse was not advised that Torres was requesting leave; only that Torres would be two weeks late getting back due to a family problem. Torres was scheduled to work on the following days: November 9, 10, 11, 14, and 15, 1989. Torres did not report for work on any of those days, nor did she have any other communication with her employer after the telephone communication of November 7, 1990, until November 20, 1989, when Torres called again. Between November 9 and November 20, 1989, Ms. Burham and Ms. Hulse called Torres' home telephone number in an effort to contact her son and obtain the telephone number where Torres was staying in California. Those efforts were unsuccessful. On November 9, 10, 11, 14, and 15, 1989, Torres was placed on unauthorized leave without pay. On November IS, 1989, the Department sent Torres a letter advising her that because she had failed to report for work and had been on unauthorized leave without pay since November 10, 1989, she was deemed to have abandoned her position and to have resigned from the Career Service.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Administration enter a final order in this case concluding that the Petitioner, Anna Torres, did not abandon her position of employment with the Department and ordering that she be reinstated to her position as a toll collector with back pay. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 27th day of June, 1990. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1990.
Findings Of Fact Burney was employed by HRS until 5:00 p.m. on September 28, 1988, when she was deemed to have abandoned her position. Her regular working hours were 8:00 a.m. to 5:00 p.m., Monday through Friday. Burney was not at work on September 26, 1988. She maintains that she had someone call in for her to inform HRS that she would not be in that day. Burney does acknowledge that her supervisor, Sherry Martin, told the caller that she could not approve leave for that day. Burney did not report for work on September 27, 1988. Burney called her office and spoke with another clerk, not with her supervisor. Her supervisor was unavailable and the clerk did not have the authority to approve leave. Burney again failed to report for work on September 28, 1988. She called in and spoke with Mrs. McClenton, another supervisor. Burney informed Mrs. McClenton that she had a drug problem which was why she had not been at work. Burney asked her where she could get some help for her problem. Burney was told that her supervisor could not help her and that she would have to get help on her own. On October 4, 1988, HRS sent Burney a certified letter advising her that her absence from work on September 26-28, 1988, was not authorized and that she was deemed to have abandoned her position and to have therefore resigned from Career Service, effective 5:00 p.m. September 28, 1988. On October 7, 1988, Burney returned to her office seeking her paycheck. She was told by the personnel office that leave was not approved for that period and that she was no longer employed there. Burney did not report for work on any day between September 26 and October 7, 1988. She had not requested leave on a leave request form and no leave was authorized by her supervisor for this period. Burney knew that she was not on approved leave and had been told that her supervisor would not approve leave for that period. Leave is only authorized when it is requested on an appropriate leave request form and is approved by a supervisor. Rule 22A-7.010(2), Florida Administrative Code, provides: An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service...
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order and therein find that Angela B. Burney has abandoned her position, deem that Angela B. Burney has effectively resigned from Career Service, and dismiss the petition for review. DONE and ENTERED this 20th day of February, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1988. COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Angela B. Burney 1585 West 35th Street Jacksonville, Florida 32209 Scott D. Leemis Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue This cause came on for consideration upon Respondent's Motion to Dismiss the Petition for Relief from a "Determination: No Cause," order entered by the Florida Commission on Human Relations.
Findings Of Fact The undisputed facts are as follows: After investigating Petitioner's Claim of Discrimination, the Florida Commission on Human Relations (FCHR) entered its Order, "Determination: No Cause," on March 12, 1996. FCHR's order unequivocally advised Petitioner that her Petition for Relief, if any, must be filed within 35 days. The thirty-fifth day would have been April 16, 1996. After the time as provided by FCHR's Rule 60Y-5.008(1) and by FCHR's March 12, 1996 order for the filing of her Petition for Relief had already run out, Petitioner filed a request for extension of time in which to file her Petition for Relief. Her request for extension stated that she needed the extension of time "due to failing health of my spouse and medical care and concern for him." This late request for extension of time was the only request for extension of time filed by Petitioner. It was dated April 17, 1996, (one day late) but it was not filed with the FCHR until April 24, 1996 (eight days late). Petitioner did not mail a copy of her April 1996 request for extension of time to Respondent as required by FCHR rules. Therefore, Respondent was unaware there had been a request for extension made to the FCHR until Respondent received the FCHR's order dated May 31, 1996. Because it had no notice that Petitioner was requesting an extension in April 1996, Respondent had no opportunity to object to the FCHR before the Commission entered its May 31, 1996 order. By its May 31, 1996 order, FCHR granted Petitioner an extension of time only until June 14, 1996 in which to file her Petition for Relief. The order does not state a number of days, but clearly and specifically states that the Petition for Relief must be filed by June 14, 1996. FCHR granted no further extensions to Petitioner for filing her Petition for Relief. Petitioner filed her Petition for Relief beyond the June 14, 1996 date assigned her by the FCHR. Although her Petition for Relief was dated June 14, 1996, FCHR's date stamp on the Petition for Relief shows that it was not filed with the Commission until June 18, 1996. FCHR transmitted the Petition for Relief to the Division of Administrative Hearings on or about July 12, 1996. Respondent filed a Motion to Dismiss the Petition for Relief and an Answer with affirmative defenses based on untimeliness. See, Conclusion of Law 15. In response to the October 8, 1996 order to show cause herein, Petitioner filed a pleading she labelled "Order Requiring Further Advices and to Show Cause." Although she had been required to show cause why she did not timely file her Petition for Relief between May 31, 1996 and June 18, 1996, she instead explained her tardiness in filing for an extension of time back in April 1996 this way: I was under the impression that I had 35 days to respond from the time I received the Notice of Determination: No Cause. I receive [sic] this notice on March 15, 1996, under my impression the 35 day lapse period would have been until April 19, 1996. I feel my response met this time period as my letter was dated April 17, 1996. In response to the October 8, 1996 order herein, Petitioner has offered no explanation why she filed her Petition for Relief beyond the clearly specified extension period granted her by the Commission.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
Findings Of Fact The Petitioner is an ACLF which is owned by Vivian Zaleta, its sole stockholder. Prior to May, 1980, and continuing through the present, the Petitioner corporation operated the ACLF from its location at 700 S. E. 20th Street, Fort Lauderdale, Florida. Mrs. Zaleta purchased the property and improvements at 700 S. E. 20th Street for $150,000 and from the period May, 1980, through the date of the final hearing, November 16, 1982, invested an additional $80,000 to $100,000 on repairs and improvements to the property. Petitioner was granted a license by the Department to operate as an ACLF and began operations on May 2, 1981. The Petitioner's initial license expiration date was August 5, 1981. Applications for renewal of the license must be submitted to the Department on required renewal forms which were furnished to Petitioner by the Respondent for completion and submission. Petitioner's renewal license application was completed May 9, 1981, and received by the Department on May 11, 1981. By letter dated June 2, 1981, the Department requested the Petitioner to complete certain financial reports which were enclosed in said letter and required: ...in order to comply with the Florida Statute 400, Chapter II and the changes in Section 10A-5 of the Florida Administrative Code which became effective May 14, 1981.." (Petitioner's Exhibit 3) Petitioner completed the additional financial report requested by the Department. This financial report was received by the Department on August 7, 1981. On September 14, 1981, the Department requested additional information from the Petitioner. The Petitioner's application was denied by the Department by letter to Mrs. Zaleta dated November 24, 1981, due to a failure of Petitioner to comply with Chapter 10A-5.14, Florida Administrative Code, and requests for specified information. Moreover, in its letter of denial, the following was noted: Florida Statute 120, "Administrative Procedure Act stipulates that every application for license shall be approved or denied within ninety days after receipt of the application. Since your application was received on May 11, 1981, the expiration of the ninety-day time limit was August 11, 1981. There is no statutory provision (sic) to extend this mandated time limit on applications, there fore, it is necessary that your application for a license for an Adult Congregate Living Facility be denied because the fol lowing licensure requirements have not been met... (Petitioner's Exhibit 1a) By letter dated November 27, 1981, and received by the Department on November 30, 1981, Mrs. Zaleta, as administrator of Yesterday's, filed a timely request for an administrative hearing to review the denial of the requested license renewal. During the pendency of these proceedings, counsel for the parties attempted to resolve their dispute. On behalf of Petitioner, Rosen and Santini, P.A., Certified Public Accountants, prepared a financial report and revised financial report concerning the financial status of the corporation on forms furnished by the Department and submitted the same to Aging and Adult Services. The Department apparently considered the documents submitted pursuant to settlement discussions between counsel as part of a new and separate license renewal application and by letter dated June 29, 1982, again denied the requested license renewal for the failure of the Petitioner to provide a Statement of Operation or Renewal Questionnaire. At the final hearing, the Department conceded that the letter of June 29, 1982, was incorrect, and that Petitioner had submitted and the Department had received and reviewed a Statement of Operations or Renewal Questionnaire which was submitted by the Petitioner's accounting firm. Since August, 1981, the Department has deleted the Petitioner from its list of Adult Congregate Living Facilities to which health care providers may refer potential residents, thereby, causing Petitioner to lose both referrals and income.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Department of Health and Rehabilitative Services granting the requested license to the Petitioner Yesterday's Retirement Manor, Inc. DONE and ORDERED this 7th day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1983.
Findings Of Fact Adopted in subsentence in Finding of Fact 6. Adopted in subsentence in Finding of Fact 3 and 8. Adopted in subsentence in Finding of Fact 8. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rejected as unnecessary and/or subordinate. Rejected as unnecessary and/or subordinate. Rejected as a recitation of testimony and/or unnecessary. Rejected as a recitation of testimony and/or unnecessary. COPIES FURNISHED: Ruby Seymour-Campbell, Esquire 5739 Pembroke Road Hollywood, Florida 33023 Michael Mathis, Esquire Office of Licensure and Certification Post Office Box 210 Jacksonville, Florida 32231 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller Acting General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Petitioner's application for re-licensure as an Adult Congregate Living Facility (ACLF) be dismissed as moot. DONE and ORDERED this 1st day of May 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of May 1987. APPENDIX TO RECOMMENDED ORDER FOR DOAH CASE #86-3671 The following my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the Proposed Findings of Fact submitted by the parties to this case.
The Issue Whether Respondent discriminated against Petitioner based on either his age or in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner, William T. Mahan, Jr., who was at all times relevant hereto an employee of the University of Florida Institute of Food and Agricultural Sciences (UF IFAS or IFAS) Extension Program, was 59 years old when his age discrimination complaint was initiated. Respondent, UF IFAS Extension Program, is a state-wide program run by the University of Florida that places extension agents in each of Florida’s 67 counties. The core mission of the program is to transfer knowledge that is generated through research at the University to the clientele the extension agent serves, thereby turning research information into practical solutions. Petitioner became a permanent faculty member of UF IFAS in June 1993. Petitioner had permanent status as an Extension Agent IV, with an administrative appointment as County Extension Director (CED) for Franklin County. A CED is an Extension Agent with educational responsibilities; however, a CED also has the administrative task of running the local office, working with an advisory committee, and serving as liaison between UF IFAS and the county government. There is no permanent status in a CED administrative appointment. Petitioner was the CED in Franklin County, Florida, with an office in Apalachicola from June 1993 until October 28, 2013. An IFAS extension office is funded in part by the local board of county commissioners. In Franklin County, at all times relevant hereto, the county paid 20 percent of Petitioner’s salary, as well as the salary of an administrative secretary and expenses of the physical office. The Franklin County Extension Office was a single-agent office. Unlike other CEDs in the northwest district, Petitioner was solely responsible for running the office, working with an advisory committee, serving as liaison to the county, as well as all educational programming and client services. Dr. Pete Vergot, III, is the UF IFAS District Extension Director (DED) for the northwest extension district, encompassing 16 counties in the panhandle of Florida. He was appointed DED in 1997 and supervised all UF IFAS Extension employees in that district. Dr. Vergot was Petitioner’s direct supervisor until December 2013. Dr. Vergot was an ineffective supervisor. During his tenure as DED, Dr. Vergot was counseled by his superiors, and required to take management training courses, in response to complaints from other IFAS faculty about his management and communication style. At one point, Dr. Vergot was required to undergo a “360 performance review” during which administrators interviewed not only employees supervised by Dr. Vergot, but also community members and clientele of the program with whom Dr. Vergot came into contact. Extension Agents are evaluated yearly by their DED through the submission of a Report of Accomplishments (ROA). An ROA is written by the employee and summarizes what the employee has accomplished during the prior calendar year. An ROA often includes an employee’s job duties, number of publications, number of programs conducted for clientele in their district, and any other accomplishments of note. CEDs have two components to their evaluation: their performance as an agent and their performance in their administrative position. Petitioner’s employment with UF IFAS was reportedly without incident until 2010. In Petitioner’s annual performance appraisals for program years 2007, 2008, and 2009, Dr. Vergot gave Petitioner an overall rating of “Exemplary.”1/ During an August 2010 Franklin County Commission budget hearing, the county voted to eliminate funding for Petitioner’s position. Petitioner was informed about the decision via media reports the following morning. Petitioner and Dr. Vergot personally met with several county commissioners following the August budget hearing. county funding of the extension office was restored at the final budget hearing on September 20, 2010. The evidence conflicted as to whether the county’s August decision to cut funding of the extension office was related, in any respect, to Petitioner’s performance in the County. However, the record clearly established that, as a result of this incident, Dr. Vergot lost confidence in Petitioner’s ability to perform. On September 24, 2010, Dr. Vergot sent Petitioner an email requesting that he start developing and implementing a new plan of work (POW). The email lists a number of specific ideas to expand and enhance program offerings, including offering additional “Life Skill” areas for youth through 4H programming and volunteer development and support, increasing the master gardener program, and restarting a previously-successful family nutrition program. In the email, Dr. Vergot also asked Petitioner to become part of the 4H PIT team, increase day camping for 4H youth, enhance his presence with the natural resource PIT team, increase teaching in natural resource areas, and enhance reporting to local officials and clientele. The email concluded by requesting Petitioner to review each item and email Dr. Vergot a plan by October 18, 2010. Dr. Vergot did not issue Petitioner his 2010 annual performance appraisal until June 1, 2011. On this appraisal, Dr. Vergot rated Petitioner “Improvement Required (IR).” Of the various categories in the appraisal, Petitioner was rated IR on “Financial Support,” wherein Dr. Vergot noted Petitioner needed to “find continued financial support” and that “your internal and external funding is lacking.” Dr. Vergot also rated Petitioner IR in “Delivery/Contacts and Statistical Report” noting “we need you to increase your Extension teaching in all of your program areas, just attending meetings is not Extension programming.” In “CED Program Leadership and Coordination,” on which Petitioner also received an IR rating, Dr. Vergot noted, “you had a severe issue with commissioners supporting your program this year, we need for you to work on communications and relationship with all commissioners and county government to reverse this issue.” IFAS maintains a Sustained Performance Evaluation Program (SPEP) to evaluate long-term performance of tenured and permanent status faculty. In addition to annual performance evaluations, tenured and permanent status faculty members are evaluated every seven years on their previous six years’ performance. According to IFAS regulations, the purpose of SPEP is to document adequacy of sustained performance and encourage continued professional growth and development of faculty. The SPEP review is conducted by the faculty member’s administrator and is based on the performance evaluations from the prior six years and “any related evaluative or other information relative to the faculty member during this period of time.” The administrator must rate the faculty member as either “satisfactory” or “below satisfactory.” A faculty member receiving a “below satisfactory” rating receives a written reprimand, and is required to submit a summary of accomplishments (SOA) to the administrator within two months to be reviewed by a peer advisory committee (PAC). Two members of the PAC are selected by the administrator and one by the faculty member. If, after an in-depth review of the SOA, the PAC agrees that the faculty member’s performance requires improvement, the faculty member is required to submit a performance improvement plan (PIP) within two months. On July 25, 2011, Petitioner received a letter entitled “PIP/Written Reprimand” from Dr. Vergot “for your ‘improvement required’ annual work performance review dated June 1, 2011.” The letter informed Petitioner that his accomplishments over the last six years would be reviewed by a PAC and that he may be asked to submit a PIP. The letter reiterated many of the issues raised in Dr. Vergot’s 2010 evaluation of Petitioner—need for more educational programming rather than meetings, as well as maintaining and increasing funding sources. Other specific requests included increasing creative works and publications, redesigning reporting to commissioners, and de-cluttering and managing his office in a professional manner. The letter raised two programming issues in specific areas of the County: (1) a youth program in the minority area of Apalachicola which “[y]our County Commissioners requested,” and (2) extension and educational programming for clientele on St. George Island. With respect to the youth program, Dr. Vergot stated “we need to see a major positive program developed before the budget year of the county begins for 2012.” With respect to the St. George Island programming, Dr. Vergot requested Petitioner meet with the commissioner for that district, as well as Petitioner’s advisory committee representatives, determine the type of programming appropriate, and develop, implement and report to Dr. Vergot on the plan and progress. In February 2012, the PAC issued its review of Petitioner’s six year ROA. Excerpts from the PAC “comment form” were a mixture of positive and negative feedback. The overall feedback on Petitioner’s creative works was negative—PAC members indicated that Petitioner’s attendance at county commission meetings and reports to the county commission were not considered creative works, that he needed to develop creative works and publications that are used in teaching, and that he was “weak in this area.” As for publications, the PAC noted that Petitioner submitted “lots of newspaper columns” but had only published two abstracts in six years, was a junior author on one peer-reviewed article, and “need[ed] improvement in this area.” Under extension programming, PAC members commented that Petitioner’s speaking engagements and use of media is not a concise program of adult environmental education with objectives and outcomes, and that Petitioner did not have enough work in this program to constitute 25 percent of his job. An overall comment notes, “[n]eed to keep balance with meetings and teaching. Seem to be off balance, and need to remember primary job is to teach.” The PAC comments also noted a disconnect between the six-year record of Petitioner’s works and Dr. Vergot’s “Exemplary” evaluations during the same time period. The PAC noted, “[p]revious appraisal ratings by DED conflict with the total picture presented to the committee.” Dr. Thomas Obreza is the Senior Associate Dean for Extension, to whom Dr. Vergot reports. Dr. Obreza first became involved in review of Petitioner’s performance when Petitioner contacted him to complain of the 2010 “Improvement Required” rating. At Petitioner’s request, Dr. Obreza reviewed Petitioner’s previous POWs and ROAs, as well as some of his prior performance evaluations. Dr. Obreza concluded that not only was Dr. Vergot’s criticism of Petitioner’s 2010 performance justified, but also that Dr. Vergot had been “really lenient” in prior evaluations and may have engaged in “grade inflation.” On December 16, 2011, Dr. Obreza wrote Petitioner a three-page letter in response to his concerns with his 2010 evaluation. Dr. Obreza concluded that Petitioner “should have never received ‘Exemplaries’” for 2007, 2008, and 2009. On February 20, 2012, Dr. Vergot issued Petitioner a PIP request “in response to your 6-yr. Summary of Accomplishments . . . and the subsequent [PAC] review.” The letter required Petitioner to submit a PIP within two months detailing his “plans, paths and timeline for overcoming deficiencies identified in the July 25, 2011 letter of reprimand.” The letter listed 14 deficiencies, many of which reiterated items noted in Petitioner’s June 1, 2011 performance evaluation and July 25, 2011 letter of reprimand. On March 9, 2012, Petitioner submitted a revised POW to Dr. Vergot for review and comment. Petitioner submitted his PIP on April 19, 2012. The PIP referenced each one of the 14 issue areas outlined in the February 20, 2012 PIP request and included a response thereto. On the first three issue areas, all of which related to planning educational programs and teaching activities, rather than meetings, Petitioner indicated they were addressed in his revised POW on which he was awaiting comments before finalizing. On some of the issue areas, Petitioner provided a mix of excuses and updates. For example, in response to the need to increase creative works, Petitioner responded that closure of one of the local newspapers and sale of another had “reduced my newspaper publications.” Petitioner reported that he was planning new “fact sheets” for 2012, was working to obtain column space in the monthly “Coastlines” publication, and had developed several Powerpoint presentations. In response to the direction to develop programming for clientele on St. George Island, Petitioner noted that he had met with the district commissioner, that she had no programming recommendations, and that he “plan[ned] to regularly check with her on my programming efforts.” In response to efforts to obtain new funding, Petitioner expressed some frustration (“You say my internal and external funding is very low. What exactly does that mean?”), but reported having recently jointly applied for $300,000 in funding for an oyster-related project, of which Petitioner could be awarded $60,000 for “educational components of the proposal.” In response to the request to redesign his reports to the county commission, Petitioner noted: This is an issue that came up a few years ago when Alan Pierce and one former Commissioner felt that my reports to the Board were getting a little long. When notified, I immediately made my reports shorter and it hasn’t been an issue since. As requested, I spoke with Alan about my reports and he stated that my current report format and length is good and nobody has a problem. He recommended that I continue to use my current reporting format. In February 2011, all the northwest region CEDs were instructed to undertake “listening sessions” in their respective counties as part of a 10-year long-range planning process. At a district CED meeting, the CEDs were given instructions regarding conducting listening sessions to gather input from their communities on strengths and weaknesses, as well as where extension could provide new services. The listening sessions had to be conducted within a particular timeframe as an initial step in the long-range planning process. Petitioner planned a series of listening sessions, the first at a Rotary Club meeting and another at an upcoming chamber of commerce meeting. When Petitioner reported to Dr. Vergot the plan for community sessions, Dr. Vergot was upset and instructed Petitioner not to hold the sessions at civic clubs, but to solicit information from a broader community base. Petitioner described his situation as “scrambling” to put together additional sessions within a short timeframe. Petitioner was unable to reschedule the listening sessions in a timely manner, in part because of preexisting plans to visit his son in the military. Petitioner attended the May 13, 2011 northwest district extension meeting at which he presented the results of his listening sessions. Petitioner presented the input he received from a meeting with the Franklin Promise Coalition and a group in the City of Carabelle, as well as input he received from “one-on-one” communication with individuals. On July 25, 2011, the same day Petitioner received the PIP/Written Reprimand for his 2010 annual performance evaluation, Dr. Vergot issued Petitioner a Written Reprimand for failure to hold the required public extension listening session. Dr. Vergot’s letter referred to Petitioner’s May 13, 2011 report to the northwest extension directors as “deceiving,” chastised Petitioner for failure to follow directives, and ordered Petitioner to “refrain from attempting to cover up [his] misdeeds through deceptive behavior.” The letter instructed Petitioner to complete the listening session process by August 26, 2011. Notably, Dr. Vergot included the following: This is yet another example of why Franklin County would rather withdraw funding and close Extension the office [sic] than continue with an ineffective CED. Although we were able to convince them last year not to withdraw their support, our ability to do so again is now greatly compromised. Only a change in your attitude and performance will make a difference moving forward. I expect you to comply with the directives that I have presented above, and I will be closely monitoring your performance during the next 3 months. Petitioner’s 2011 Performance Appraisal, completed by Dr. Vergot and dated June 1, 2012, showed an overall rating of “Standard Professional Performance,” suggesting that Petitioner had cured any perceived deficiencies in his work product by the end of the calendar year 2011. On January 31, 2013, Petitioner received a draft of his 2012 annual performance appraisal from Dr. Vergot in person with an overall rating of “Standard Professional Performance.” On June 12, 2013, Petitioner received through e-mail a final copy of his 2012 annual performance appraisal from Dr. Vergot with an overall rating of “Improvement Required.” Dr. Vergot did not contact or in any way discuss a change in the overall rating with Petitioner prior to issuing the final performance appraisal. On October 28, 2013, Dr. Vergot personally delivered Petitioner a Notice of Non-Reappointment informing Petitioner that his CED appointment to Franklin County would not be renewed the following year. This notice informed Petitioner that October 29, 2014, would be the last day of his employment. The letter further instructed Petitioner to report the following day to Marjorie Moore, CED for the Bay County Extension Office, and perform the duties assigned to him by Ms. Moore. During this meeting with Petitioner, Dr. Vergot mentioned to Petitioner that if he was considering early retirement, he would not be eligible for medical insurance until he was 59 and one half years old, and that “you ain’t there yet.” Dr. Vergot’s tone was sarcastic. Petitioner inferred that his job may be further jeopardized prior to the purported October 2014 “last day of employment.” Dr. Vergot admitted making the statement about early retirement and eligibility for medical benefits. However, the statement was made at the request of an HR employee, who asked Dr. Vergot to advise Petitioner of the age requirement to obtain continued medical benefits in the event Petitioner chose early retirement. Although Petitioner was removed from his administrative position as CED, he remained an Extension Agent IV and neither his pay nor his benefits were reduced. To effect the issuance of the Notice of Non- reappointment and the involuntary reassignment of Petitioner, Dr. Vergot and UF IFAS relied on UF Regulation 6C1-7.013, entitled “Rules of University of Florida 7.013 Non-Renewal of Non-Tenured and Non-Permanent Status Faculty Appointments: Notice of Ending of Employment of Non-Tenured and Non-Permanent Status Faculty.” Petitioner was surprised by the non-reappoinment and reassignment. On November 18, 2013, Petitioner met informally with Dean Nick Place, UF IFAS Dean and Director, to discuss Petitioner’s reassignment. During that meeting, Petitioner brought to Dean Place’s attention that 6C1-7.013 did not provide a basis for reassigning Petitioner, who was a tenured, permanent faculty member. UF Regulation 6C1-7.048 governs disciplinary actions against tenured, permanent faculty members. The regulation authorizes reassignment, among other disciplinary actions, for “just cause,” which is defined as “incompetence or misconduct” and includes specific examples thereof. The regulation requires written notice by hand delivery or certified mail/return receipt of the proposed discipline to the faculty member, specifying the reasons therefor. Further, the regulation provides for a 10-day response period and an opportunity to meet with the individual issuing the notice, and for filing a grievance. The Notice on Non-Reappointment did not cite this regulation. Dr. Place advised Petitioner to file a written formal Step 1 grievance if Petitioner disagreed with his reassignment. Grievance Procedures UF Regulation 7.042 governs the faculty grievance procedure. Pursuant to the regulation, a “grievance” is “a dispute or complaint alleging a violation of the regulations of the University or the Board of Governors concerning tenure, promotion, non-renewal, and termination of employment contracts, salary, work assignments, annual evaluation . . . and other benefits or rights accruing to a faculty member . . . .” The purpose of the grievance procedures is to “provide a prompt and efficient collegial method for the review and resolution of” faculty grievances. Under the general procedure, a grievance must be filed with the chief administrative officer (CAO) within 30 days of the act or omission complained of, a Step 1 meeting with the CAO held within 7 to 15 days, and the CAO’s written decision issued no more than 30 days after the Step 1 meeting. At the Step 1 meeting, the grievant may present evidence in support of the grievance. After the Step 1 meeting, the CAO “shall establish through conferences and review of the appropriate documentation” the facts giving rise to the grievance. For grievants holding IFAS appointments, the Step 1 review may include two levels: one by the dean and one by the appropriate vice president. Under that procedure, if a grievant is dissatisfied with the dean’s review, he or she may request review by the vice president no later than 15 days after receipt of the dean’s decision. The vice president shall review the grievance and issue a written decision with findings of fact and the reasons for the decision reached, within 30 days. If the grievant is not satisfied with the decision in Step 1, the grievant may file a written request with the Office of the Provost for a Step II grievance review within 15 days after the date the grievant receives the Step 1 decision. The provost shall meet with the grievant (and his or her representative) in an effort to resolve the grievance no later than 15 days following receipt of the request for review. The provost shall issue a written decision with respect to the grievance, giving findings of fact and the reasons for conclusions reached, within 30 days of the meeting. Petitioner’s Step 1 Grievances On November 27, 2013, Petitioner filed a Step 1 grievance against UF IFAS (PV 131127), alleging that the October 28, 2013 Notice of Non-reappointment was issued in violation of university regulations and that Petitioner was being discriminated against by his supervisor, Dr. Vergot, on the basis of his age. The grievance suggested that Dr. Vergot intentionally issued the non-renewal to interfere with Petitioner’s eligibility for early retirement. Petitioner testified that Dr. Vergot called him a “dinosaur” sometime while they were outside of a meeting, either a district faculty meeting or a CED meeting, but was unable to recall the timeframe or any other details. Dr. Vergot denied ever having called Petitioner a dinosaur. On November 27, 2013, Dean Place issued a letter to Petitioner rescinding the October 28, 2013 Notice of Non- reappointment “due to an administrative error.” At final hearing, Mary Ann Morgan, Director of IFAS Human Resources (HR), confirmed that the regulation did not apply to Petitioner, and accepted responsibility for the error. The letter of rescission reiterated that Petitioner was to continue reporting to the Bay County CED. Thus, the November 27, 2013 rescission reversed Petitioner’s non- reappointment, but not his involuntary reassignment to Bay County. Petitioner met with Dr. Place again on December 16, 2013, formally regarding his Step 1 grievance of the October 28, 2013 Notice of Non-Reappointment. In attendance were Petitioner, Dean Place, Ms. Morgan, and Kevin Clarke, then- Employee Relations Manager/EEO Investigator. Mr. Clarke was asked to join the grievance meeting concerning Petitioner’s allegation of age discrimination. On December 24, 2013, Petitioner filed a second formal grievance (PV 140102) of the October 28, 2013 involuntary reassignment to Bay County, which was unresolved by rescission of the non-renewal letter. Internal EEO Investigation Mr. Clarke’s investigation of Petitioner’s complaint consisted of interviewing both Petitioner and Dr. Vergot, and reviewing Petitioner’s employment file. Mr. Clarke counted the December 16, 2013 meeting as his interview of Petitioner. On January 10, 2014, Mr. Clarke issued an investigative report of his findings in which he concluded that Petitioner’s claim of age discrimination was unsubstantiated. The report concludes as follows: The allegations of discrimination based on age could not be substantiated. Annual evaluations and documents related to ongoing efforts to establish a Performance Improvement Plan for the Grievant provide evidence that the Grievant’s job performance has been unsatisfactory and an issue for some time prior to the non-renewal and relocation. Petitioner faults Mr. Clarke for failing to interview him separately from the Step 1 meeting which included other faculty and HR employees. No evidence was offered to establish the University EEO procedures. Thus, the undersigned has no evidence on which to base a finding that Mr. Clarke’s investigation was contrary to University policy. Step 1 Grievance Review On January 13, 2014, Dean Place issued his Step 1 review letter to Petitioner regarding grievance PV 131127. As to Petitioner’s first contention, that his non-reappointment was based on an inapplicable regulation, Dean Place concluded that the “University acted in error” in issuing the October 28 letter, but that the issue had been corrected by rescission of the letter. As to Petitioner’s claim of age discrimination, Dean Place concluded, based upon his review of Mr. Clarke’s Investigative Report and “discussing the findings with the investigator,” there was no basis for the allegation. Dean Place’s Step 1 review letter did not directly address Petitioner’s complaint regarding his involuntary transfer to Bay County. The letter offered, as if in passing, “Further, University Regulation 7.042(2)(c) enables the reassignment of employees.” In closing, Dean Place informed Petitioner that the University “is exercising its discretion to ‘forward this Step 1 review and all grievance materials to IFAS Senior Vice President Dr. Jack Payne for review as part of the Step 1 process[.]’” University regulation 7.042(2)(c) sets forth the applicable burden of proof for faculty grievances. This rule, cited by Dean Place as “enabling the reassignment of employees,” has no bearing on reassignment of, or for that matter, any disciplinary action against, faculty members. Petitioner responded to Dean Place in writing on January 22, 2014, noting that Dean Place’s letter failed to address Petitioner’s continued involuntary transfer to Bay County, and pointing out that University Regulation 7.042 does not authorize the “reassignment of employees.” In his response, Petitioner requested that this grievance (PV 131127) be combined with PV 140102 for purposes of review by the vice president. After the December 16, 2013, meeting with Dean Place for a formal grievance discussion concerning his complaint of involuntary reassignment and age discrimination, Petitioner discovered that UF IFAS had posted a notice for the position of CED for Franklin County that same date. Petitioner filed a formal grievance (PV 14011A) alleging the posting was a continuation of discrimination and retaliation against him. On December 23, 2013, one day before UF’s Christmas break, Dr. Vergot issued Petitioner a Notice of Proposed Suspension citing Petitioner’s lack of participation in previous PIP processes. Petitioner filed a formal grievance (PV 140100B) in response to this notice, but was subsequently notified that because the suspension was a “proposed” action, it was not grievable. On January 27, 2014, Petitioner was issued a PIP entitled “Boat anchorage/mooring mapping and ranking for the Florida panhandle (Bay county and west),” outlining specific tasks to be completed within six months. The PIP purports to take into account Petitioner’s “experience, professional expertise, contacts and academic credentials,” but Petitioner has no experience in boat anchorage mapping. According to the University’s policies, the purpose of a PIP is to address deficiencies and weaknesses identified in a faculty member’s annual performance evaluation or SPEP process. A PIP should identify particular deficiencies and lay out a plan and timelines to address the deficiencies. The PIP presented to Petitioner bears little, if any, relationship to any individual deficiency noted in the various performance evaluations or Petitioner’s SPEP. The plan directs Petitioner to prepare a publication rating mooring sites in the Florida Panhandle by various qualities (safety, bottom type, etc.) and provide boater maps to those sites, which is important to both recreation and safety during storm events. It is an assignment to develop a publication for the Panhandle similar to one existing for southwest Florida. Outcome of Second-Level Step 1 Review On February 27, 2014, Dr. Payne submitted his Step 1 review of Petitioner’s grievances. The letter again acknowledged error in the Notice of Non-reassignment and confirmed that Petitioner’s reassignment to Bay County was not the result of age discrimination. Dr. Payne disagreed with Petitioner’s allegation that Dean Place’s reference to Regulation 7.042 as “allowing reassignment of employees” was in error. However, in order to rectify the situation, Dr. Payne rescinded the November 27, 2013 Step 1 review letter, rescinded the Notice of Proposed Suspension, and confirmed revocation of the October 28, 2013 Notice of Non-reappointment. Dr. Payne replaced the Notice of Non-reappointment with a letter stating that Petitioner’s administrative appointment as Franklin County CED was removed effective October 28, 2013, pursuant to University Regulations 7.003(5)(b) and 7.004(3)(e). Regulation 7.003(5)(b) provides that a faculty member holding an administrative position may be moved or reassigned to other institutional duties “at any time during the term of the appointment.” Regulation 7.004(3)(e) provides “[t]he administrator directly responsible for the appointment and supervision of an academic-administrative classification or an administrative position may choose not to renew, to remove, or to reassign a faculty member at any time during such an appointment.” Thus, the University finally identified for Petitioner a regulation authorizing his reassignment approximately four months after he was reassigned. Petitioner exercised his right to a Step 2 grievance review by the University Provost for Academic and Faculty Affairs, Dr. Angel Kwolek-Folland. Dr. Kwolek-Folland issued her Step 2 review of Petitioner’s grievance on June 18, 2014, finding no merit in Petitioner’s allegations that he was reassigned based either on his age or in retaliation for complaints of discrimination. Erik Lovestrand, who is younger than Petitioner, was eventually awarded the position of Franklin County CED. The record does not support a finding of Mr. Lovestrand’s age at the time of appointment. Petitioner filed his Complaint of Discrimination with the FCHR on February 20, 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing FCHR Petition 201400215. DONE AND ENTERED this 4th day of February, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2016.
The Issue Whether the petitioner abandoned her position and resigned from the Career Service System under the circumstances of this case.
Findings Of Fact Petitioner was employed as a permanent full-time employee in the Bureau of Workers' Compensation within the Division of Risk Management in the Department of Insurance. Her job title was Secretary Specialist. Her immediate supervisor was Lawrence Sharp, Chief of the Bureau. However, on February 6, 1985, Mr. Sharp was on annual leave, and Ms. Peggy Veigas was the acting supervisor. On February 6, 1985, Petitioner took two hours of authorized leave from work from 8 a.m. to 10 a.m., in order to attend a Leon County Court hearing on charges of cashing bad checks. The checks had been repaid in advance of the hearing: however, petitioner was immediately adjudicated guilty of writing bad checks, sentenced to 12 days in jail, and taken into custody. Petitioner was due to return to work at 10:00 a.m., but was unable to do so because of circumstances beyond her control. She was taken directly from her court appearance to the Leon County Jail. However, prior to being transported to the jail, she was able to ask her husband, who had accompanied her to court, to call her employer and ask for emergency leave to cover the 12 days she would be serving her sentence. Mr. Penney called petitioner's office at about 2 p.m. on February 6, 1985, and in the absence of Mr. Sharp the call was referred to Ms. Veigas, the acting supervisor. Mr. Penney explained that Mrs. Penney would not be at work for the next eight to ten days and requested emergency leave for that period of time. Mr. Penney was very vague about the nature of the emergency and Mrs. Penney's whereabouts. He did not explain that Mrs. Penney was in jail because he felt it would be embarrassing to Mrs. Penney. Ms. Veigas stated that emergency leave could be granted but she would have to talk to Mrs. Penney. She told Mr. Penney to have Mrs. Penney call her. Mr. Penney stated that Mrs. Penney could not call in and implied that Mrs. Penney was out of town. Ms. Veigas explained that Mrs. Penney needed to call her as soon as she could get to a phone and, if necessary, for her to call collect. Mr. Penney interpreted Mrs. Veigas' statement, that she could grant the leave but Mrs. Penney would have to call as soon as possible, as meaning that the leave was approved and that Mrs. Penney had to call work as soon as she was able to do so. However, in making the statement, Mrs. Veigas meant only that there was a possibility that leave would be granted and Mrs. Penney needed to call and explain the nature of the emergency. The subsequent actions of both Mr. Penney and Mrs. Veigas were consistent with their respective conceptions of the conversation. That afternoon, after the telephone call, Ms. Veigas went to the personnel office and discussed the matter with Ms. Cooper. Ms. Veigas wanted to find out how she should handle the request for leave and whether she should wait for Mr. Sharp to return from his vacation. Mr. Yohner, the Chief of Personnel Management, was consulted, and he stated that when Mrs. Penney called, Ms. Veigas would have to determine whether she would approve the leave or not. Ms. Veigas was told by Ms. Cooper to wait until Ms. Veigas heard from Mrs. Penney "so we would know whether it was an illness or whatever it was." (T-47) However, the nature of the emergency was determined without the necessity of a call from Mrs. Penney. Within a short period of time after the call from Mr. Penney, Ms. Veigas mentioned the request for emergency leave to Ms. Benefield. Ms. Benefield told Ms. Grissom about the call from Mr. Penney, and the two speculated that Mrs. Penney might be in jail. They were aware that Mrs. Penney had financial problems. While Ms. Grissom stood by, Ms. Benefield telephoned the jail and was told that Mrs. Penney was in jail for passing bad checks. They immediately communicated the information to Ms. Veigas, and the three of them, along with a woman named Edna, discussed the situation for about five or ten minutes. Ms. Veigas then conveyed the information to Mr. Yohner, Ms. Cooper and Mr. Beardon, the Director of the Division of Risk Management, who had previously been informed of the call from Mr. Penney. The following day Mr. Sharp returned to work and was informed of the entire situation. Mr. Sharp discussed the matter with Mr. Beardon. Mr. Beardon had his assistant call the State Attorney's Office to verify that Mrs. Penney was in jail. Thus, by the end of the workday on February 7, 1985, Mrs. Penney's co-workers, her immediate supervisor, the Chief of Personnel Management, and the Director of the Division of Risk Management were all aware that Mrs. Penney, through her husband, had requested emergency leave, and they were all aware that the emergency leave had been requested due to Mrs. Penney's incarceration. On either February 6th or 7th, Mr. Yohner notified Mr. Gresham, the Director of the Division of Administration and Mr. Yohner's supervisor, that a possible abandonment of position situation existed. Mr. Gresham was not informed that petitioner had requested emergency leave. On Friday, February 8th, or on the following Monday, Mr. Sharp called a friend of his in the Department of Administration, Don Bradley, to gain advice on application of the rule relating to abandonment of position. He was told that when someone missed three days of work without having authorization, it was the same thing as resigning and required termination. Mr. Sharp relayed the information to Mr. Beardon. Mr. Sharp did not consider petitioner's leave request and did not know whether he had the authority to approve the leave since at least a portion of the leave requested would have been without pay.2 After three days expired and Mrs. Penney had neither reported for work nor called the office, Mr. Beardon contacted Mr. Yohner to discuss the situation. He also discussed the situation with his superior in the Department. Though Mr. Beardon was aware that Mrs. Penney had requested leave through her husband and was aware that she was absent from work only because she had no choice, Mr. Beardon did not consider her request for leave. His reason was that Mrs. Penney did not personally request the leave. He did not consider the possibility that Mrs. Penney was not able to call in person. Mr. Beardon felt that a call from Mrs. Penney was necessary to find out "all of the pertinent facts and why the request was needed." However, it is apparent that Mr. Beardon already knew why the requested leave was needed and had already discovered the pertinent facts. Nevertheless, Mr. Beardon determined that, under the abandonment rule,3 petitioner had abandoned her job and her employment should be terminated. He recommended that the personnel office proceed with the action in accordance with the rule. Mr. Yohner informed Mr. Gresham of Mr. Bearden's recommendation that petitioner be terminated from the Career Service via the abandonment rule. A letter was prepared for Mr. Gresham's signature, notifying Petitioner of her termination from the Career Service. Mr. Gresham signed the letter and mailed it to petitioner at her home address. By the letter dated February 11, 1985, and then by an amended letter dated February 12, 1985, petitioner was notified that she had been absent without authorized leave for three consecutive days, and therefore she was deemed to have abandoned her position pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, and to have resigned from the Career Service. Meanwhile, Mr. Penney was under the impression that the emergency leave had been granted. He was able to speak with his wife for the first time on February 9, 1985, and the first question petitioner asked her husband was whether the leave had been granted. He told her that it had been, and she displayed visible signs of relief at the knowledge. Petitioner's husband also told her that she should call Ms. Veigas at her earliest opportunity. Mrs. Penney made diligent attempts to contact her employer both before and after she spoke with her husband on February 9, 1985. On each day of her incarceration she made written requests to the Captain at the jail for permission to use the telephone to call her employer. However, she received no response. In accordance with jail policy, which allowed one phone call per week at a set time, she was permitted use of the telephone on only one occasion, on February 11, 1985 at about 11 p.m. in the evening. Mrs. Penney's sentence was reduced by Judge McClamma and she was released from jail on February 14, 1985. She received the termination letter that evening when she got home. The next morning she called Mr. Yohner and stated that she wanted to return to work. Mr. Yohner informed her that she was no longer an employee of the Department. Mrs. Penney's position was advertised on February 19th and readvertised on March 4, 1985. Sometime after March 4, 1985, a replacement was hired. Although the workers compensation bureau had a very heavy case load, Mrs. Penney's work performance had been satisfactory. Indeed, she had been promoted to the position of Secretary Specialist from her previous position of Clerk-Typist III with the bureau. Petitioner had no intent to abandon her position in the Career Service, and she had no intent to resign her position. The Department had actual knowledge of the petitioner's whereabouts during her absence from work, and had actual knowledge that she intended to return to work as soon as she could. Further, the Department was aware that petitioner had requested leave to cover the period of time she would be gone. However, instead of taking action on the request, one way or the other, the Department left the request in limbo. A decision was never made to approve or disapprove the request. The only explanation given for not considering the request was that Mrs. Penney had not made it personally. However, it is quite clear that at the time of Mr. Penney's call the Department considered the call a legitimate request for leave from Mrs. Penney even though the call was not made by her. Ms. Veigas did not tell Mr. Penney that the leave could not be granted because Mrs. Penney had not called in person. Indeed, the first thing Ms. Veigas did after the telephone call was go to the personnel office to find out how she should "process the request". The only reason that the Department wanted to talk to Mrs. Penney personally, prior to determining whether leave should be granted, was to discover the nature of the emergency. Although Mr. Penney explained that there was an emergency, that Mrs. Penney was unable to call, and that leave was being requested to cover the period of time that Mrs. Penney would be unable to work, he was very vague about the nature of the emergency. The Department understandably wanted to know the reason for the request before deciding to grant leave. However, once the Department discovered Mrs. Penney's circumstances, it was in a position to make an informed decision on the leave request, and there was no rational basis for its failure to do so. Although the granting of leave is discretionary, the discretion must be exercised. Apparently, the Department officials believed that Mrs. Penney's absence from work for three consecutive days mandated termination notwithstanding the pending request for leave. Because the Department failed to take any action on the leave request, Mrs. Penney was never notified that her request for leave had been denied. Upon consideration of the facts and circumstances of this case, it must be concluded that Mrs. Penney did not abandon her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented by this case do not constitute abandonment of position as contemplated by Rule 22A-7.10(2)(a) and directing that the petitioner be reinstated to her former position as of February 15, 1985. DONE and ENTERED this ;26th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of December, 1985.
The Issue Whether this cause is barred by a release of all claims.
Findings Of Fact On January 16, 2019, on her last day of employment with Respondent, Petitioner executed a General Release. Petitioner does not dispute that she signed the General Release, which states, in pertinent part: I knowingly and voluntarily release and forever discharge [Respondent] of and from any and all claims, known and unknown, anticipated and unanticipated, asserted and unasserted, which I have or may have against the [Respondent] as of the date of execution of this General Release. These released claims include, but are not limited to, any alleged violation of ... Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Family and Medical Leave Act; ... [and] the Florida Civil Rights Act[.] * * * By signing below, I am knowingly and freely waiving and releasing all claims I may have against the [Respondent]. I further affirm I have been given a sufficient amount of time to consider whether to sign this General Release. The subject complaint of discrimination was brought by Petitioner, after she signed the General Release, pursuant to the FCRA, which is specifically referenced as a released claim in the General Release. By executing the General Release, Petitioner released Respondent from the claims that were the basis for her complaint of discrimination. Petitioner asserts that the General Release was signed under duress, she did not give up her rights because she had not yet received her final paycheck or belongings, and that there is no proof that she received consideration for signing the general release.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Kathy L. McKethan’s Petition for Relief due to a lack of jurisdiction. DONE AND ENTERED this 28th day of October, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Keith L. Hammond, Esquire Law Office of Keith L. Hammond, P.A. Post Office Box 547873 Orlando, Florida 32854 (eServed) Kathy McKethan Post Office Box 953304 Lake Mary, Florida 32795 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 1075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
